As correctly pointed out in this blog, the Advisory Opinion (AO) of 19 July 2024 issued by the International Court of Justice (the Court) on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem has important implications for third states. In its Resolution of 30 December 2022, the General Assembly had requested the Court to pronounce itself about, inter alia, “the legal consequences that arise for all States” from the status of occupation of the Palestinian territory by Israel. After having found that Israel’s policies and practices of prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967 were in breach of international law and that the continued presence of Israel in the Occupied Palestinian Territory (OPT) was also illegal, the Court addressed the matter of the legal consequences for “other States” in paragraphs 273-279 of the AO. The present post shall elaborate some reflections on the (mis)use that judges made of the still somewhat controversial concepts of obligations erga omnes and norms of jus cogens in replying to the abovementioned question.
The Court’s (Confused) Line of Reasoning
The Court’s argumentation on the legal consequences for “other States” of Israel’s internationally wrongful acts in the OPT begun by observing that “the obligations violated by Israel include certain obligations erga omnes” and that these, in turn, include “the obligation to respect the right of the Palestinian people to self-determination and the obligation arising from the prohibition of the use of force to acquire territory as well as certain of its obligations under international humanitarian law and international human rights law” (para. 274). Having noted this, the Court stressed the duty that imposes on “all States” to “co-operate with the United Nations to put [the modalities required to ensure an end to Israel’s illegal presence in the OPT and the full realization of the right of the Palestinian people to self-determination] into effect” (para. 275). As to the prohibition of the acquisition of territory by force, the Court mentioned several resolutions by the Security Council and the General Assembly, in which all UN member States were “called upon”, among other things, to distinguish between the territory of the State of Israel and the territories occupied since 1967, not to recognize any changes to the pre-1967 borders, and not to render aid or assistance to illegal settlement activities.
In light of these resolutions, the Court claimed “that Member States are under an obligation not to recognize any changes in the physical character or demographic composition, institutional structure or status of the territory occupied by Israel on 5 June 1967, including East Jerusalem, except as agreed by the parties through negotiations and to distinguish in their dealings with Israel between the territory of the State of Israel and the Palestinian territory occupied since 1967”. According to the judges, the latter duty encompasses several other obligations (AO, para. 278). In the last paragraph devoted to the legal consequences for other States brought about by the Israeli occupation of the Palestinian territory, the Court held that, “in view of the character and importance of the rights and obligations involved, all States are under an obligation not to recognize as legal the situation arising from the unlawful presence of Israel in the [OPT]. They are also under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the [OPT]” (AO, para. 279, emphasis added).
The sequence of the reasoning, as well as the terminology used by the Court, raise two related issues that will be addressed in turn. First, it is unclear what role the finding that certain obligations violated by Israel are erga omnes had on the existence of further obligations on other States. Second, the concepts of obligations erga omnes and of norms of jus cogens seemed to a certain extent to overlap and to be mixed up by the judges.
The Uncertain Impact of Obligations Erga Omnes on the Finding of Legal Consequences for Other States
The first problem that emerges regards the impact that the erga omnes nature of certain obligations breached by Israel had on the conclusion of the Court as to the distinct obligations that exist upon other States: does the observation contained in paragraph 274 on the collective nature of certain obligations breached by Israel create a causal link with respect to the obligations incumbent upon other States? The ambiguous language employed in the AO does not allow giving definitive answers.
On the one hand, it can be argued that the Court logically inferred from the collective nature of some of the obligations breached by Israel – such as those corresponding to the right to self-determination and the prohibition of the use of force to acquire territory –, that some further obligations automatically apply to other States. However, such a reading would be erroneous. As stressed by judge Tladi in his declaration, “[t]he erga omnes character of the obligations does not itself create obligation on third States” (para. 31). The same view was already expressed by Judge Higgins in her separate opinion in the Wall AO of 2004 (paras. 37-39). In the famous Barcelona traction’s obiter dictum, the Court held that obligations erga omnes “are the concern of all States” and that “[i]n view of the importance of the rights involved, all States can be held to have a legal interest in their protection” (para. 33). It did not say that they create new obligations for all States, but rather that they concern and create legal interests for them. In light of this, the primary, and as of now one might say only, effect that has been developed by the Court with regard to obligations erga omnes (partes) is the possibility for all States (bound by the same treaty) to institute proceedings before the Court against the wrongdoer State to have their legal interest judicially protected against the breach of one or more collective obligations contained in that treaty. In other words, the erga omnes character impinge upon the procedural dimension related to certain obligations of international law. The same logic was adopted by the Institute of International Law, which defined an obligation erga omnes as one “under general international law that a State owes in any given case to the international community, in view of its common values and its concern for compliance, so that a breach of that obligation enables all States to take action” (Art. 1(a), emphasis added). Again, the stress was placed on the effect produced by this kind of obligations at the procedural level. Furthermore, the fact that a State owes an obligation to the international community is clearly different from saying that all the other States of the international community do have further obligations to respond to the breach of that collective obligation. The latter are a separate set of obligations, which do not originate from the collective nature of the “primary” obligations breached.
Alternatively, one may argue that the Court simply wanted to stress the erga omnes character of certain obligations breached by Israel, but correctly disconnected this remark from the elaboration on the effect produced by the breach of those obligations on other States in terms of further obligations incumbent upon them. In my view, this second reading is the most plausible. This is because the Court limited itself to “observe” the collective nature of some obligations, a term that has a softer meaning than others that could have been employed, such as “stress” or “emphasize”, and that conveys the idea of something that is tangential but not strictly necessary to the conclusions reached afterwards. Moreover, the Court did not explicitly state that the legal consequences produced on other States derive from the erga omnes nature of some obligations breached by Israel. Finally, as previously recalled, the Court has been so far circumscribing the effects of obligations erga omnes (partes) to establish the standing of applicant States, so that a narrow interpretation of its logical reasoning in the Palestine AO is warranted. If the Court said that the breach of all obligations erga omnes automatically creates further obligations on all the other States of the international community, a Pandora’s box would have been opened. I believe that that was not the case. However, the use by the Court of a clearer language would have been preferable.
The Blurred Distinction between Obligations Erga Omnes and Norms of Jus Cogens in the Elaboration of the Legal Consequences for Other States
The other strictly related and perhaps greatest problem that emerges from the section of the AO devoted to the legal consequences for other States of Israel’s breaches of international law regards the apparent conflation of the notions of obligations erga omnes and norms of jus cogens. As is known, there is a certain convergence between those (ARS commentary, at 111), so much so that former ICJ judge Simma referred to them as “two sides of one and the same coin” in one of his prominent courses held at The Hague (at 300). However, the two concepts must be kept conceptually distinct, having different nature and functioning (ARS commentary, at 112). Moreover, there is no perfect symmetry between them, since there is a certain consensus that all norms of jus cogens contain obligations erga omnes, whereas the opposite is not always true (see, inter alia, Gaja at 56 and Tams at 310).
The sense of confusion in the Court’s reasoning is apparent in paragraph 279, in which it inferred a series of obligations on “all States” from the “character and importance of the rights and obligations involved”. The phrasing seems to refer to the notion of obligations erga omnes, given also the similarity with the dictum contained in the Barcelona Traction judgment. Furthermore, it is almost identical to that used in the Wall AO of 2004 (para. 159) to justify the obligations for all States ensuing from the construction of the wall in the OPT. However, the consequences drawn in terms of obligations existing on “all States” coincide with those provided in Article 41 of the ILC Articles on the Responsibility of States (ARS), devoted to the consequences of a serious breach of an obligation stemming from a norm of jus cogens. The provision in its relevant parts reads: “1. States shall cooperate to bring to an end through lawful means any serious breach […]. 2. No State shall recognize as lawful a situation created by a serious breach […], nor render aid or assistance in maintaining that situation […]”. As is evident, almost all the legal consequences identified by the Court in paragraph 279 of the AO reflect the ones provided in Article 41. The only “addition” is in the final sentence, where the Court stated that “all the States parties to the Fourth Geneva Convention have the obligation […] to ensure compliance by Israel with international humanitarian law as embodied in that Convention”.
Indeed, the judges had previously held in the AO – for the first time ever in such explicit terms – that “in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law” (AO, para. 233). However – and apart from the phrasing oddity (why did the Court specify that the right to self-determination is a norm of jus cogens “in cases of foreign occupation”? Does that mean that the norm loses its peremptory character when a territory is not occupied under legal terms?) –, this creates again some uncertainty: do the abovementioned legal consequences for other States stem from the peremptory nature of the norm(s) containing the obligations that were seriously breached by Israel (as it would be correct to conclude)? Or do they stem exclusively from the collective character of those obligations? Or from both? The reader is somewhat puzzled. As aptly noted by judge Gómez Robledo in his separate opinion, “[i]t is precisely the legal consequences of the violation of the right to self-determination that argue in favour of that right being recognized as a hierarchically higher norm, rather than the fact that these are obligations erga omnes which give rise to standing but do not, as such, create peremptory norms. That is why the Court takes a fundamental step forward in this [AO], even though it still appears to hold back to some extent in this regard” (para. 25). A similar but more critical opinion was held by judge Tladi, who noted the “ambivalent” and “questionable” approach adopted by the Court and defined its choice not to engage with the other dominant understanding of the law as “a dismissiveness unbecoming of a court of justice” (paras. 28-29). Different views were instead expressed by judge Cleveland who, with respect to the right to self-determination, stated that “[i]t is the erga omnes character of the norms as «the concern of all States» [and not their peremptory nature] that informs the Court’s determination of the responsibilities of States” (paras. 34-35) and by President Salam, according to whom “obligations that Israel has violated include erga omnes obligations […] which entail «special legal obligations» for other States in accordance with customary international law, as reflected in Article 41 of the [ARS]” (para. 44). Interestingly, written statements submitted by certain States also showed a degree of uncertainty as to the different function of these two notions: some held that the legal consequences for other States stemmed from the peremptory character of the norm breached (e.g. Saudi Arabia and Qatar), others from the collective nature of the obligations breached (e.g., United Arab Emirates and France), and others mentioned both characteristics (e.g., Chile and Lebanon).
In this regard, one should note that the Court identified the right to self-determination, and not also the prohibition of the acquisition of territory by force, as a norm of jus cogens. Conversely, it is stated that both the right to self-determination and the prohibition of the use of force to acquire territory are obligations erga omnes (AO, para. 274). Thus, a sense of ambiguity is again conveyed. This shall not be overlooked, since in those cases in which collective obligations are contained in rules of international law that have not a peremptory nature, such as the prohibition of the acquisition of territory by force, the necessity to ascertain where the legal consequences for other States stem from is far from irrelevant. Furthermore, obligations constitute a narrower (and more numerous) circle with respect to norms, and perhaps the Court should have better defined the former that were at stake in the case. Another aspect that leaves one somewhat disoriented is that Article 41 ARS speaks of serious breaches of obligations under peremptory norms, the term “serious” having regard to their scale or character (ARS Commentary, at 110) and involving “a gross or systematic failure by the responsible State to fulfil the obligation” (ARS, Article 40, para. 2). Assuming that the Court did actually resort to at least some of the rules set in the ARS, one might be led to think that, given the prolonged occupation by Israel of Palestinian territory (AO, paras. 104-110), the breach of the right to self-determination of the Palestinian people may qualify as systematic (ivi, para. 243); or that, given the detrimental effects of Israel policies and practices in the OPT (ivi, paras. 111-156, 180-229 and 243), the failure by Israel to fulfil the right of Palestinians to self-determination is gross. However, the Court never mentioned Article 41 (nor the ARS in general) throughout the AO, nor did it elaborate on any “seriousness” feature of Israel’s breaches. Finally, the conflation is once more confirmed in paragraph 280, dealing with the consequences of Israel’s internationally wrongful acts for the United Nations. Here the Court held that the duty of non-recognition also applies to international organizations, and to the UN in particular, “in view of the serious breaches of obligations erga omnes under international law” and, a little further, “[i]n view of the character and importance of the obligations erga omnes involved in the illegal presence of Israel in the [OPT]”.
Conclusion
In our view, regrettably the AO of 19 July 2024 represents a step backwards in the process of clarifying the scope, functioning and interplay of two key concepts of modern international law on responsibility, namely obligations erga omnes and norms of jus cogens. The issuance of such a significant AO represented a good opportunity for the Court to better frame those concepts. Instead, and net of the necessity to adopt the most comprehensive language in order to accommodate the different views of the judges, the reasoning behind the finding of the legal consequences of Israel’s internationally wrongful acts in the OPT as regards other States raises more than a few questions.
First, obligations erga omnes produce effects first and foremost at the procedural level and do not give rise per se to new substantive obligations for other States. The Court should thus continue to follow its jurisprudential trend on legal standing in contentious matters. Second, as far as norms of jus cogens are concerned, it would be desirable for the Court to better clarify their function in the realm of State responsibility and, to this end and for the sake of legal certainty, refer in a more systematic manner to the ARS; alternatively, it should justify its departure from it. Finally, explicit recognition of the relationship intercurrent between obligations erga omnes and norms of jus cogens will be also key in future cases.
Obligations Erga Omnes, Norms of Jus Cogens and Legal Consequences for “Other States” in the ICJ Palestine Advisory Opinion
Written by Eugenio CarliAs correctly pointed out in this blog, the Advisory Opinion (AO) of 19 July 2024 issued by the International Court of Justice (the Court) on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem has important implications for third states. In its Resolution of 30 December 2022, the General Assembly had requested the Court to pronounce itself about, inter alia, “the legal consequences that arise for all States” from the status of occupation of the Palestinian territory by Israel. After having found that Israel’s policies and practices of prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967 were in breach of international law and that the continued presence of Israel in the Occupied Palestinian Territory (OPT) was also illegal, the Court addressed the matter of the legal consequences for “other States” in paragraphs 273-279 of the AO. The present post shall elaborate some reflections on the (mis)use that judges made of the still somewhat controversial concepts of obligations erga omnes and norms of jus cogens in replying to the abovementioned question.
The Court’s (Confused) Line of Reasoning
The Court’s argumentation on the legal consequences for “other States” of Israel’s internationally wrongful acts in the OPT begun by observing that “the obligations violated by Israel include certain obligations erga omnes” and that these, in turn, include “the obligation to respect the right of the Palestinian people to self-determination and the obligation arising from the prohibition of the use of force to acquire territory as well as certain of its obligations under international humanitarian law and international human rights law” (para. 274). Having noted this, the Court stressed the duty that imposes on “all States” to “co-operate with the United Nations to put [the modalities required to ensure an end to Israel’s illegal presence in the OPT and the full realization of the right of the Palestinian people to self-determination] into effect” (para. 275). As to the prohibition of the acquisition of territory by force, the Court mentioned several resolutions by the Security Council and the General Assembly, in which all UN member States were “called upon”, among other things, to distinguish between the territory of the State of Israel and the territories occupied since 1967, not to recognize any changes to the pre-1967 borders, and not to render aid or assistance to illegal settlement activities.
In light of these resolutions, the Court claimed “that Member States are under an obligation not to recognize any changes in the physical character or demographic composition, institutional structure or status of the territory occupied by Israel on 5 June 1967, including East Jerusalem, except as agreed by the parties through negotiations and to distinguish in their dealings with Israel between the territory of the State of Israel and the Palestinian territory occupied since 1967”. According to the judges, the latter duty encompasses several other obligations (AO, para. 278). In the last paragraph devoted to the legal consequences for other States brought about by the Israeli occupation of the Palestinian territory, the Court held that, “in view of the character and importance of the rights and obligations involved, all States are under an obligation not to recognize as legal the situation arising from the unlawful presence of Israel in the [OPT]. They are also under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the [OPT]” (AO, para. 279, emphasis added).
The sequence of the reasoning, as well as the terminology used by the Court, raise two related issues that will be addressed in turn. First, it is unclear what role the finding that certain obligations violated by Israel are erga omnes had on the existence of further obligations on other States. Second, the concepts of obligations erga omnes and of norms of jus cogens seemed to a certain extent to overlap and to be mixed up by the judges.
The Uncertain Impact of Obligations Erga Omnes on the Finding of Legal Consequences for Other States
The first problem that emerges regards the impact that the erga omnes nature of certain obligations breached by Israel had on the conclusion of the Court as to the distinct obligations that exist upon other States: does the observation contained in paragraph 274 on the collective nature of certain obligations breached by Israel create a causal link with respect to the obligations incumbent upon other States? The ambiguous language employed in the AO does not allow giving definitive answers.
On the one hand, it can be argued that the Court logically inferred from the collective nature of some of the obligations breached by Israel – such as those corresponding to the right to self-determination and the prohibition of the use of force to acquire territory –, that some further obligations automatically apply to other States. However, such a reading would be erroneous. As stressed by judge Tladi in his declaration, “[t]he erga omnes character of the obligations does not itself create obligation on third States” (para. 31). The same view was already expressed by Judge Higgins in her separate opinion in the Wall AO of 2004 (paras. 37-39). In the famous Barcelona traction’s obiter dictum, the Court held that obligations erga omnes “are the concern of all States” and that “[i]n view of the importance of the rights involved, all States can be held to have a legal interest in their protection” (para. 33). It did not say that they create new obligations for all States, but rather that they concern and create legal interests for them. In light of this, the primary, and as of now one might say only, effect that has been developed by the Court with regard to obligations erga omnes (partes) is the possibility for all States (bound by the same treaty) to institute proceedings before the Court against the wrongdoer State to have their legal interest judicially protected against the breach of one or more collective obligations contained in that treaty. In other words, the erga omnes character impinge upon the procedural dimension related to certain obligations of international law. The same logic was adopted by the Institute of International Law, which defined an obligation erga omnes as one “under general international law that a State owes in any given case to the international community, in view of its common values and its concern for compliance, so that a breach of that obligation enables all States to take action” (Art. 1(a), emphasis added). Again, the stress was placed on the effect produced by this kind of obligations at the procedural level. Furthermore, the fact that a State owes an obligation to the international community is clearly different from saying that all the other States of the international community do have further obligations to respond to the breach of that collective obligation. The latter are a separate set of obligations, which do not originate from the collective nature of the “primary” obligations breached.
Alternatively, one may argue that the Court simply wanted to stress the erga omnes character of certain obligations breached by Israel, but correctly disconnected this remark from the elaboration on the effect produced by the breach of those obligations on other States in terms of further obligations incumbent upon them. In my view, this second reading is the most plausible. This is because the Court limited itself to “observe” the collective nature of some obligations, a term that has a softer meaning than others that could have been employed, such as “stress” or “emphasize”, and that conveys the idea of something that is tangential but not strictly necessary to the conclusions reached afterwards. Moreover, the Court did not explicitly state that the legal consequences produced on other States derive from the erga omnes nature of some obligations breached by Israel. Finally, as previously recalled, the Court has been so far circumscribing the effects of obligations erga omnes (partes) to establish the standing of applicant States, so that a narrow interpretation of its logical reasoning in the Palestine AO is warranted. If the Court said that the breach of all obligations erga omnes automatically creates further obligations on all the other States of the international community, a Pandora’s box would have been opened. I believe that that was not the case. However, the use by the Court of a clearer language would have been preferable.
The Blurred Distinction between Obligations Erga Omnes and Norms of Jus Cogens in the Elaboration of the Legal Consequences for Other States
The other strictly related and perhaps greatest problem that emerges from the section of the AO devoted to the legal consequences for other States of Israel’s breaches of international law regards the apparent conflation of the notions of obligations erga omnes and norms of jus cogens. As is known, there is a certain convergence between those (ARS commentary, at 111), so much so that former ICJ judge Simma referred to them as “two sides of one and the same coin” in one of his prominent courses held at The Hague (at 300). However, the two concepts must be kept conceptually distinct, having different nature and functioning (ARS commentary, at 112). Moreover, there is no perfect symmetry between them, since there is a certain consensus that all norms of jus cogens contain obligations erga omnes, whereas the opposite is not always true (see, inter alia, Gaja at 56 and Tams at 310).
The sense of confusion in the Court’s reasoning is apparent in paragraph 279, in which it inferred a series of obligations on “all States” from the “character and importance of the rights and obligations involved”. The phrasing seems to refer to the notion of obligations erga omnes, given also the similarity with the dictum contained in the Barcelona Traction judgment. Furthermore, it is almost identical to that used in the Wall AO of 2004 (para. 159) to justify the obligations for all States ensuing from the construction of the wall in the OPT. However, the consequences drawn in terms of obligations existing on “all States” coincide with those provided in Article 41 of the ILC Articles on the Responsibility of States (ARS), devoted to the consequences of a serious breach of an obligation stemming from a norm of jus cogens. The provision in its relevant parts reads: “1. States shall cooperate to bring to an end through lawful means any serious breach […]. 2. No State shall recognize as lawful a situation created by a serious breach […], nor render aid or assistance in maintaining that situation […]”. As is evident, almost all the legal consequences identified by the Court in paragraph 279 of the AO reflect the ones provided in Article 41. The only “addition” is in the final sentence, where the Court stated that “all the States parties to the Fourth Geneva Convention have the obligation […] to ensure compliance by Israel with international humanitarian law as embodied in that Convention”.
Indeed, the judges had previously held in the AO – for the first time ever in such explicit terms – that “in cases of foreign occupation such as the present case, the right to self-determination constitutes a peremptory norm of international law” (AO, para. 233). However – and apart from the phrasing oddity (why did the Court specify that the right to self-determination is a norm of jus cogens “in cases of foreign occupation”? Does that mean that the norm loses its peremptory character when a territory is not occupied under legal terms?) –, this creates again some uncertainty: do the abovementioned legal consequences for other States stem from the peremptory nature of the norm(s) containing the obligations that were seriously breached by Israel (as it would be correct to conclude)? Or do they stem exclusively from the collective character of those obligations? Or from both? The reader is somewhat puzzled. As aptly noted by judge Gómez Robledo in his separate opinion, “[i]t is precisely the legal consequences of the violation of the right to self-determination that argue in favour of that right being recognized as a hierarchically higher norm, rather than the fact that these are obligations erga omnes which give rise to standing but do not, as such, create peremptory norms. That is why the Court takes a fundamental step forward in this [AO], even though it still appears to hold back to some extent in this regard” (para. 25). A similar but more critical opinion was held by judge Tladi, who noted the “ambivalent” and “questionable” approach adopted by the Court and defined its choice not to engage with the other dominant understanding of the law as “a dismissiveness unbecoming of a court of justice” (paras. 28-29). Different views were instead expressed by judge Cleveland who, with respect to the right to self-determination, stated that “[i]t is the erga omnes character of the norms as «the concern of all States» [and not their peremptory nature] that informs the Court’s determination of the responsibilities of States” (paras. 34-35) and by President Salam, according to whom “obligations that Israel has violated include erga omnes obligations […] which entail «special legal obligations» for other States in accordance with customary international law, as reflected in Article 41 of the [ARS]” (para. 44). Interestingly, written statements submitted by certain States also showed a degree of uncertainty as to the different function of these two notions: some held that the legal consequences for other States stemmed from the peremptory character of the norm breached (e.g. Saudi Arabia and Qatar), others from the collective nature of the obligations breached (e.g., United Arab Emirates and France), and others mentioned both characteristics (e.g., Chile and Lebanon).
In this regard, one should note that the Court identified the right to self-determination, and not also the prohibition of the acquisition of territory by force, as a norm of jus cogens. Conversely, it is stated that both the right to self-determination and the prohibition of the use of force to acquire territory are obligations erga omnes (AO, para. 274). Thus, a sense of ambiguity is again conveyed. This shall not be overlooked, since in those cases in which collective obligations are contained in rules of international law that have not a peremptory nature, such as the prohibition of the acquisition of territory by force, the necessity to ascertain where the legal consequences for other States stem from is far from irrelevant. Furthermore, obligations constitute a narrower (and more numerous) circle with respect to norms, and perhaps the Court should have better defined the former that were at stake in the case. Another aspect that leaves one somewhat disoriented is that Article 41 ARS speaks of serious breaches of obligations under peremptory norms, the term “serious” having regard to their scale or character (ARS Commentary, at 110) and involving “a gross or systematic failure by the responsible State to fulfil the obligation” (ARS, Article 40, para. 2). Assuming that the Court did actually resort to at least some of the rules set in the ARS, one might be led to think that, given the prolonged occupation by Israel of Palestinian territory (AO, paras. 104-110), the breach of the right to self-determination of the Palestinian people may qualify as systematic (ivi, para. 243); or that, given the detrimental effects of Israel policies and practices in the OPT (ivi, paras. 111-156, 180-229 and 243), the failure by Israel to fulfil the right of Palestinians to self-determination is gross. However, the Court never mentioned Article 41 (nor the ARS in general) throughout the AO, nor did it elaborate on any “seriousness” feature of Israel’s breaches. Finally, the conflation is once more confirmed in paragraph 280, dealing with the consequences of Israel’s internationally wrongful acts for the United Nations. Here the Court held that the duty of non-recognition also applies to international organizations, and to the UN in particular, “in view of the serious breaches of obligations erga omnes under international law” and, a little further, “[i]n view of the character and importance of the obligations erga omnes involved in the illegal presence of Israel in the [OPT]”.
Conclusion
In our view, regrettably the AO of 19 July 2024 represents a step backwards in the process of clarifying the scope, functioning and interplay of two key concepts of modern international law on responsibility, namely obligations erga omnes and norms of jus cogens. The issuance of such a significant AO represented a good opportunity for the Court to better frame those concepts. Instead, and net of the necessity to adopt the most comprehensive language in order to accommodate the different views of the judges, the reasoning behind the finding of the legal consequences of Israel’s internationally wrongful acts in the OPT as regards other States raises more than a few questions.
First, obligations erga omnes produce effects first and foremost at the procedural level and do not give rise per se to new substantive obligations for other States. The Court should thus continue to follow its jurisprudential trend on legal standing in contentious matters. Second, as far as norms of jus cogens are concerned, it would be desirable for the Court to better clarify their function in the realm of State responsibility and, to this end and for the sake of legal certainty, refer in a more systematic manner to the ARS; alternatively, it should justify its departure from it. Finally, explicit recognition of the relationship intercurrent between obligations erga omnes and norms of jus cogens will be also key in future cases.
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